ADMINISTRATIVE
REVIEW COUNCIL
REPORT TO THE
ATTORNEY-GENERAL
REVIEW OF PENSION DECISIONS
UNDER REPATRIATION
LEGISLATION
Report No. 20
Australian Government Publishing Service
Canberra 1983
© Commonwealth of Australia 1983
ISBN 0 644 02892 0
Printed by Canberra Reprographics Pty Limited
119 Wollongong St, Fyshwick, A.C.T.2609
ADMINISTRATIVE REVIEW COUNCIL
G.P.O. Box 9955
Canberra A.C.T. 2601
16 September 1983
Dear Attorney-General,
I have pleasure in submitting to you herewith a report by the Administrative Review Council on Review of Pension Decisions under Repatriation Legislation.
Yours sincerely,
E. J. L Tucker
Chairman
Senator the Hon. G. J. Evans
Attorney-General
Parliament House
Canberra, A.C.T. 2600
CONTENTS
ParagraphPage
LIST OF RECOMMENDATIONS6
INTRODUCTION19
Repatriation Benefits and Services39
Repatriation Legislation59
Format of Report1011
PART 1: THE EXISTING SYSTEM1112
Pensions and Services1212
Disability and Dependants' Pensions1512
Pensions Payable in Respect of a Veteran's Death1913
Service Pensions2113
The Means of Primary Decision Making and Review2614
Repatriation Boards3215
Establishment and Composition3315
Functions3615
Procedures3816
Onus and Standard of Proof: Section 474617
Workloads and Delays4817
Repatriation Commission5119
Establishment and Composition5119
Functions5219
Delegation of Powers5319
Procedures5520
Onus and Standard of Proof5720
Workload and Delays5820
Repatriation Review Tribunal6121
Establishment and Constitution6422
Functions6822
Procedures6923
Venue7624
Onus and Standard of Proof7724
Referrals to Commission for Review: Section 107VL(2)8025
Workload8525
Adjournments and Delays8726
The Administrative Appeals Tribunal9228
Jurisdiction9228
Constitution9328
Workload9428
The Federal Court of Australia9529
Repatriation Act 1920, Part IIIC9629
Administrative Appeals Tribunal Act 19759929
Administrative Decisions (Judicial Review) Act 197710029
The Ombudsman10430
Jurisdiction10430
Powers and Procedures10630
Workload10931
ParagraphPage
PART 2: DEFICIENCIES IN THE EXISTING SYSTEM:
THE NEED FOR REFORM11032
Identified Deficiencies11332
Primary Decision Making Based on Incomplete Evidence11332
Explanation of the Basis of Decisions 11633
Inadequate Representation of Claimants11933
Multiplicity of Avenues of Appeal12634
Consequences of Identified Deficiencies13035
Low Acceptance Rate at the Primary Levels of Decision Making13136
Large Number of Cases for Review by the RRT13236
Distortion of RRT's Role13937
Delays14038
PART 3: THE PROPOSED SYSTEM14740
Primary Decision Making15742
The Primary Decision Maker15842
Powers of the Primary Decision Maker16142
Evidence before the Primary Decision Maker16844
Informal Interviews17746
Reasons for Decisions17847
Appeal Rights Relating to Service Pensions18147
Intermediate Review19249
Options for Reform19449
Veterans' Appeals Board20151
Repatriation Commission22455
Final Review on the Merits23257
The AAT and RRT Compared24059
A General or Specialist Tribunal26163
Costs and Effects of AAT Review27265
AAT’s Repatriation Jurisdiction27967
Transitional Arrangements30973
APPENDIX 1: Repatriation Acts Amendment Bill 197974
APPENDIX 2: Recipients of Discussion Paper75
LIST OF RECOMMENDATIONS
RECOMMENDATION 1
Repatriation Boards should be abolished and the Repatriation Act 1920 should be amended to provide that all entitlement claims and assessment applications be determined in the first instance by delegates of the Repatriation Commission.
RECOMMENDATION 2
The Repatriation Act 1920 should be amended to provide that:
(a)where a delegate of the Repatriation Commission has made a determination concerning a claim for a repatriation pension or an application for assessment of such a pension, the claimant or applicant has a right of appeal to the Veterans' Appeals Board (referred to in recommendation 8 below); and
(b)(i) where an entitlement claim is wholly rejected; or
(ii) where no increase is made to the rate of an existing pension on an application for
assessment,
the claim or application shall be referred forthwith to the Veterans' Appeals Board and notice shall be given to the claimant or applicant accordingly.
Within 3 months of being notified that a claim or application has been referred to the Board, a claimant or applicant should advise the Board of his desire that the appeal should proceed. If no such advice is received by the Board within the 3 month period, it may in its discretion dismiss the claim or application. Where a claim or application is dismissed, the claimant or applicant should be able to initiate a fresh appeal on showing good cause.
RECOMMENDATION 3
Section 24AB of the Repatriation Act 1920 should be amended to provide that a copy of the report compiled by the Secretary of the Department pursuant to that section should be given to a claimant or applicant within 6 weeks of an appeal being lodged with or referred to the Veterans' Appeals Board. The claimant or applicant should be allowed 28 days or such further time as he requests in which to add to or comment upon the material in the report. In the event that the Department does not forward a copy of the report within 6 weeks or the claimant or applicant is allowed further time for comment, the 3 month time limit referred to in Recommendation 2 should be automatically extended by a period equivalent to that of the delay or extension of time.
RECOMMENDATION 4
A delegate of the Commission should be empowered to seek further material from the claimant or applicant and/or the Department where it appears to him that the evidence before him may not be the whole of the available evidence relevant to the claim or application to be decided.
RECOMMENDATION 5
The Repatriation Act 1920 should be amended to authorise the holding of an informal interview between a delegate of the Commission and a claimant or applicant where the claimant or applicant so requests or where the officer so requests and the claimant or applicant is willing to participate.
RECOMMENDATION 6
The Repatriation Act 1920 should require a delegate of the Commission to provide a claimant or applicant with a written statement of the reasons for a primary decision and the terms of that decision.
RECOMMENDATION 7
The Repatriation Act 1920 should be amended to provide claimants and applicants for Service Pensions with the same appeal rights as are available to claimants and applicants for other repatriation pensions.
RECOMMENDATION 8
A Veterans' Appeals Board should be established under the Repatriation Act 1920 as an intermediate review tribunal hearing appeals on the merits from primary decisions made by delegates of the Commission relating to claims and applications for repatriation pensions.
RECOMMENDATION 9
Existing provisions of the Repatriation Act 1920 concerning such matters as the composition and constitution of the Repatriation Review Tribunal, places of sitting, the appointment and qualifications of its members (including Services' Members) and their terms of appointment, should generally be used as models for the Veterans' Appeals Board.
RECOMMENDATION 10
Legislation should provide for the Veterans' Appeals Board to conduct oral hearings, summon witnesses, take evidence on oath, and require the production of documents. The Board should be required to provide a claimant with a hearing if the claimant so requests, and to offer the opportunity of a hearing before reaching a decision which is in any respect adverse to the claimant. Proceedings should be conducted with as little formality and technicality, and with as much expedition, as the requirements of all relevant enactments and a proper consideration of the matters before the Board permits.
RECOMMENDATION 11
The Repatriation Act 1920 should require the Veterans' Appeals Board to give its decisions in writing and to state the reasons for its decisions, including findings of fact. The Act should provide that reasons may be stated orally but the Board should be obliged, if requested by one of the parties, to give its reasons in writing within 28 days of such a request being made.
RECOMMENDATION 12
For the purposes of the Veterans' Appeals Board's jurisdiction, no restrictions should be placed on the claimant's or applicant's freedom to be represented, if he wishes, by a person of his own choice.
RECOMMENDATION 13
The Repatriation Act 1920 should be amended to empower the Repatriation Commission to reverse a primary decision of its delegate in relation to a claim or application for a Service Pension. The Veterans' Appeals Board should have jurisdiction to review the exercise of the Commission's power which produces a decision which is adverse to the claimant or applicant.
RECOMMENDATION 14
Section 28 and Division 4 of Part IIIA of the Repatriation Act 1920 should be repealed.
RECOMMENDATION 15
An appeal from a decision of the Veterans' Appeals Board should be initiated either by the applicant or claimant or, where the decision of the Board is contrary in any particular to the original primary decision, by the Commission, and the Repatriation Act 1920 should provide accordingly.
RECOMMENDATION 16
The Repatriation Act 1920 should be amended to provide that the jurisdiction presently exercised by the Repatriation Review Tribunal under Division 3 of Part IIIA of the Repatriation Act should be abolished and jurisdiction to review decisions of the Veterans' Appeals Board should be conferred on the Administrative Appeals Tribunal. Since the Repatriation Review Tribunal's jurisdiction would cease to exist, Parts IIIA and IIIC of the Repatriation Act should be repealed and the Repatriation Review Tribunal abolished.
RECOMMENDATION 17
Part IIIB of the Repatriation Act 1920 should be repealed.
RECOMMENDATION 18
The legislation conferring jurisdiction on the Administrative Appeals Tribunal should provide that, for the purposes of review of repatriation decisions, the Tribunal should be constituted by or include at least one member who is an ex-serviceman.
RECOMMENDATION 19
The legislation conferring jurisdiction on the Administrative Appeals Tribunal should provide that an application may be made for review only after the primary decision has been reviewed by the Veterans' Appeals Board which has either affirmed or varied that decision. The legislation should also provide that the Administrative Appeals Tribunal shall review the original decision, as affirmed or varied by the Veterans' Appeals Board. Where the claimant or applicant appeals, the respondent should be the Repatriation Commission. Where the Commission appeals, the respondent should be the claimant or applicant.
RECOMMENDATION 20
For the purposes of the Administrative Appeals Tribunal's repatriation jurisdiction, no restrictions should be placed on the parties' freedom to be represented, if they wish, by persons of their own choice.
RECOMMENDATION 21
For the purposes of the Administrative Appeals Tribunal's repatriation jurisdiction, provision should be made for payment of expenses and allowances to applicants in respect of attendance at Tribunal hearings. Section 107VZX of the Repatriation Act 1920 could be used as a model for such a provision.
INTRODUCTION
1.The Repatriation Act 1920 was first considered by the Council in 1978 when the Attorney-General advised it of the Government's decision to establish the Repatriation Review Tribunal (RRT). The Council at that time was invited to comment on a proposed scheme whereby matters coming before that Tribunal could be referred to the Administrative Appeals Tribunal (AAT). The recommendations of the Council on this question were communicated to the Attorney-General in February 1979 and are set forth in the Council's Third Annual Report at paras 55-63 (1979). A summary of these recommendations is attached as Appendix 1 to this Report.
2.It was resolved by the Council that the means of review as established should be kept under consideration and re-examined at the end of a 2 year period. Accordingly, at its meeting in July 1981, the Council resolved that a project should be commenced in relation to review of repatriation decisions. In determining the ambit of this project, the Council was mindful of two important factors. First, the wide range of repatriation benefits and services available to men and women who served in the Australian Forces; and, second, the number and complexity of the Acts dealing with repatriation.
Repatriation Benefits and Services
3.Repatriation benefits and services include a variety of pensions, payment of the cost of medical treatment, the advance of loans or other financial assistance, and an array of allowances covering such matters as funeral expenses, loss of earnings, temporary incapacity, recreational transport, employment, clothing, attendants, and education. Both the availability and extent of rights of review of decisions relating to repatriation benefits and services vary widely. Some decisions are entirely unreviewable, while others are subject to a number of review processes. Considerations of practicability led the Council to conclude that the ambit of its project should be restricted to an examination of decisions made under repatriation legislation which are currently subject to review by the RRT and it was decided to postpone consideration of other decisions taken under repatriation legislation which are not presently reviewable by the RRT. Accordingly, this Report concentrates on decisions relating to issues of entitlement to, and assessment of, repatriation pensions such as Disability, Dependants' and Service Pensions, which are reviewable to some extent by the RRT.
4.It was recognised that a proper consideration of means of review of pension decisions under repatriation legislation would require that some attention be given to primary decision making. Thus, to the extent necessary to deal adequately with matters affecting review processes, the Report examines and makes certain recommendations concerning primary decision making in the context of processing pension claims and applications.
Repatriation Legislation
5.The ambit of this project was also determined by the variety of repatriation legislation. Repatriation pensions are provided under a number of Acts: the Repatriation Act 1920, the Repatriation (Far East Strategic Reserve) Act 1956; the Interim Forces Benefits Act 1947, the Repatriation (Special Overseas Service) Act 1962; the Papua New Guinea (Members of the Forces Benefits) Act 1957 and the Repatriation (Tomes Strait Islanders) Act 1972. Those pensions are available in relation to service in the 1914-18 War, the 1939-45 War, the Korea-Malaya Operations, the Far East Strategic Reserve, the Defence Force on or after 7 December 1972, peacekeeping forces, Interim Forces, and special service in special areas overseas. Separate provision is made under the Seamen's War Pensions and Allowances Act 1940 for veterans of the Merchant Marine who served during the 1939-45 War.
6.This Report concentrates on the Repatriation Act 1920. This Act not only gives rise to most claims for repatriation pensions, but it has also been used generally as a model for subsequent repatriation legislation. The recommendations made in this Report are intended to apply to all repatriation legislation where relevant. The Council has noted, however, that significant departures from the pattern of the Repatriation Act 1920 occur in both the Seamen's War Pensions and Allowances Act 1940 and the Papua New Guinea (Members of the Forces Benefits) Act 1957. Claims for pensions under the Seamen's War Pensions and Allowances Act 1940 are determined not by a Repatriation Board but by a Seamen's Pensions and Allowances Committee which has been established under the Act as the primary decision maker. The explanation for this particular arrangement appears to be largely historical, in as much as the legislation was sponsored not by the department responsible for veterans' affairs, but by the Department of Commerce. Decisions of the Pensions Committee are reviewable by the Repatriation Commission and then by the, RRT.
7.The structure of the Papua New Guinea (Members of the Forces Benefits) Act 1956 is also significantly different from that of the Repatriation Act 1920. This Act makes special provision for the granting of pensions and other benefits to certain indigenous inhabitants of Papua New Guinea who served in the Defence Forces, the Royal Papuan Constabulary and the New Guinea Police Force during the War and their dependants. The Act is administered by the Repatriation Commission which processes and determines claims for pensions or benefits. It is notable that Repatriation Boards play no role in decision making under the Act and there is no provision for review of the Commission's decisions by the RRT.
8.The apparent anomalies in these two Acts require detailed attention. Consideration needs to be given to the role of the Pensions Committee as the primary decision maker under the Seamen's War Pensions and Allowances Act, as well as to the absence of any means of external review on the merits of primary decisions taken by the Repatriation Commission under the; Papua New Guinea (Members of the Forces Benefits) Act. The Council considered dealing with these matters in this Report but ultimately decided against taking this course of action on the ground that the special problems they raised required separate detailed examination. However, the recommendations made in this Report regarding means of review are intended to apply to the existing system of review of decisions taken by the Seamen's Pensions and Allowances Committee since that system adopts the pattern of the Repatriation Act and does not present any anomalies.
9.In the course of preparing this Report, members of the committee appointed to oversee the project and the Council's then Director of Research attended hearings conducted by the RRT and held meetings with the President of that Tribunal, Mr F.J. Mahony, CB, OBE, and other Tribunal members. Discussions were also held with the Chairman of the Repatriation Commission and Secretary of the Department of Veterans' Affairs
(Mr D. Volker), the Deputy (Chairman of the Commission (Mr R.G. Kelly, AM), and senior officers of the Department. Additional people consulted included delegates of the Commission, members of Repatriation Boards, advocates who appear before the RRT, and officers of such veterans' organisations as the Returned Services' League of Australia and Legacy. In an attempt to obtain the views of as many such organisations as possible, and of interested persons, a Discussion Paper was circulated to those persons listed in Appendix 2 of this Report. Persons who made submissions to the Council are also listed in Appendix 2.
Format of Report
10.This Report is divided into the following three parts:
Part 1:The Existing System
Part 2:Deficiencies in the Existing System: The Need for Reform
Part 3:The Proposed System
PART 1: THE EXISTING SYSTEM
11.It is proposed in this Part to describe the various pensions available under repatriation legislation, the existing arrangements for determining applications for those pensions, and the means by which such determinations may be reviewed. Certain features of the repatriation system should, however, be emphasised at the outset. They include:
- the large amount of expenditure involved and the financial importance of repatriation pensions to veterans and their dependants;
- the large number of decisions which are taken annually;
- the onus of proof which is particularly favourable to claimants; and
- the variety of means whereby an adverse decision may be reviewed or reconsidered.
Pensions and Services
12.It has been emphasised above that veterans and their families are entitled to receive an extensive range of pensions, benefits, services and allowances under repatriation legislation. Some indication of the value of the benefits and services being distributed can be gauged from the following table of expenditure for the financial years 1980-82.
Table 1 - Statement of Expenditure 1980-82
1980-811981-82
$$
Pensions and allowances1 182 796 2051 318 212 056
Other benefits10 384 52011 659 360
Medical treatment357 219 074426 359 523